The Court of Appeals for the Federal Circuit affirmed the Court of International Trade’s 2011 ruling against Shell’s duty drawback claims for Harbor Maintenance Tax and Environmental Tax payments. In June 2011, CIT said the claims were time barred because duty drawback claims may only be filed within the three years after exporting the substitute merchandise. Shell had filed duty drawback claims in 1995 and 1996, within the three-year window, but its claims only requested drawback on import duties, and not on the HMT and ET payments. Shell didn’t file new duty drawback claims for HMT and ET payments during the six-month grace period for untimely drawback claims offered by Congress’ 1999 amendments to the drawback statute, either.
International Trade Today is providing readers with some of the top stories for July 30-Aug. 3 in case they were missed last week.
The Court of Appeals for the Federal Circuit affirmed the Court of International Trade’s February 2011 decision against a customs broker that sought to compel CBP to issue a ruling on its protests. In its decision, CIT had said customs broker Norman G. Jensen still had an administrative remedy in the form of accelerated disposition to force a protest ruling, so CIT had no subject matter jurisdiction for lack of exhaustion. CAFC agreed with CIT, saying Jensen should have requested an accelerated disposition of the protest with CBP and filed suit under 28 USC 1581(a) should the protest have been deemed denied, rather than filing suit under 28 USC 1581(i) before the protest was decided.
The Court of Appeals for the Federal Circuit reversed part the Court of International Trade’s July 2010 dismissal of Ford’s request to liquidate and refund duties paid on ten reconciliation entries of imported Jaguar brand vehicles that Ford argued should have been deemed liquidated. In 2010, CIT had dismissed Ford’s claims for lack of subject matter jurisdiction and lack of controversy, and had declined to issue a judgment on other claims. CAFC reversed CIT’s jurisdiction ruling because CIT’s ruling was based on events that occurred after Ford filed its court complaint, reversed CIT’s dismissal for lack of controversy, and vacated CIT’s decision to dismiss other Ford claims.
The Court of Appeals for the Federal Circuit reversed and remanded the International Trade Commission’s determination of no violation of section 337 in a patent dispute between Nokia and InterDigital. The ITC determination in question was in the investigation of certain 3G mobile handsets and components thereof (337-TA-613), instituted in 2007. CAFC said the ITC misinterpreted two key claim terms when finding that Nokia’s products do not infringe InterDigital’s patents. The inventions in question operate within a system that uses Code Division Multiple Access (“CDMA”) to allow multiple cellphones (referred to as “subscriber units”) within a certain geographical area to use the same portion of the radio frequency spectrum simultaneously. Judge Newman wrote a dissenting opinion.
The Court of Appeals for the Federal Circuit reversed a Court of International Trade remand of the final results of the 2006-07 administrative review of the antidumping duty order on magnesium metal from the Russian Federation, and ordered CIT to reinstate the original final results. In its ruling, CAFC said CIT overstepped its authority by requiring the International Trade Administration to consider factual information that Russian magnesium and titanium manufacturer PSC VSMPA-Avisma submitted beyond the regulatory deadline. CAFC also said CIT misinterpreted the phrase “ordinary course of business” in the statute in requiring the ITA to use a methodology that also accounted for Avisma’s titanium production when allocating costs in the calculation of constructed value for Avisma’s magnesium sales. According to CAFC, the phrase refers to a normal time period, and does not dictate a specific cost accounting methodology.
The Court of International Trade sustained the results of a remand redetermination of the final results of the 2005-06 administrative review of ball bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom (A--427--801, A--428--801, A--475--801, A--588--804, A--559--801, and A--412--801). CIT said the International Trade Administration’s remand redetermination provided adequate explanations to address plaintiff SKF’s concerns that (1) by constructing normal value using the unaffiliated supplier’s costs of production SKF would be unable to adjust its pricing to avoid dumping or decrease its antidumping duty liability because it would lack knowledge of its supplier’s production cost data; and (2) the ITA would apply adverse facts available (AFA) if the unaffiliated supplier failed to provide cost data. The remand was pursuant to a 2011 ruling by the Court of Appeals for the Federal Circuit.
The International Trade Commission’s denial of eligibility for benefits under the Continued Dumping and Subsidy Offset Act (CDSOA, aka the Byrd Amendment) for U.S. crawfish producer PS Chez Sidney was reversed by the Court of Appeals for the Federal Circuit. The ITC had originally ruled Chez Sidney ineligible in 2002, only to reverse its decision pursuant to a 2007 Court of International Trade remand after CIT said the petition support requirement of CDSOA violated the First Amendment. Then, in 2010, ITC once again found Chez Sidney ineligible for benefits after CAFC reversed CIT’s 2007 remand because of CAFC’s SKF v. USA ruling, which had found that the petition support requirement was constitutional. In this ruling, CAFC also remanded CBP’s decision, made during the 2007-2010 period during which Chez Sidney was found eligible, to only distribute benefits to Chez Sidney to the extent that the already distributed benefits were recoverable from other domestic producers.
The Court of Appeals for the Federal Circuit withdrew the portion of its February ruling in General Electric v. International Trade Commission that criticized the ITC’s removal of certain issues from judicial review in Section 337 patent proceedings. In its February ruling, CAFC had said the ITC’s practice of giving notice it would review an aspect of an administrative law judge’s determination, and then taking “no position” on that particular aspect of the determination, did not entitle the ITC to remove an issue from judicial review. The ITC had justified this practice by saying that taking no position on an issue removes an issue from judicial review because in such cases the agency ruling is not final. However, CAFC had said in its February ruling that taking no position on an issue is the same as not reviewing the issue and adopting as final, and subject to judicial review, the ALJ’s determination. Consequently, CAFC in February remanded the issues that the commission had taken no position on, namely infringement and validity of a patent that was covered in the ITC’s investigation in certain variable speed wind turbines and components thereof (337-TA-641).
The Court of International Trade sustained the International Trade Administration’s second redo of the final results from the 2004-05 administrative review of the antidumping duty order on heavy forged hand tools, finished or unfinished, with or without handles, from China (A-570-803). CIT had previously said the Adverse Facts Available (AFA) rates of (a) 139.31% applied to Shandong Huarong Machinery Co.’s sales of bars/wedges; and (b) 98.77% applied to Tianjin Machinery Import & Export Co.’s sales of picks/mattocks, were insufficiently corroborated. This time, CIT sustained the ITA’s recalculation of the AFA rates at (a) 47.88%, and (b) 32.15%, respectively, as sufficiently corroborated.